WASHINGTON – Federal prosecutors on Thursday drew sharp distinctions in the classified documents investigations of Donald Trump and President Joe Biden as they urged a federal judge to reject the former president's claims that he was the victim of a vindictive and selective prosecution.
Trump's lawyers told U.S. District Judge Aileen Cannon last month that the felony prosecution of Trump should be dismissed in part because he had been charged with illegally retaining classified documents while numerous other public figures also investigated for the potential mishandling of sensitive records, including Biden, had either not been prosecuted or faced much less serious criminal cases.
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But special counsel Jack Smith's team, in a court filing Thursday responding to that argument, said that Trump's conduct “went much further” than that of the other officials he identified and that none of them “is alleged to have willfully retained a vast trove of highly sensitive, confidential materials and repeatedly sought to thwart their lawful return and engaged in a multifaceted scheme of deception and obstruction.”
That scheme, prosecutors added, “included not only Trump’s own repeated efforts to stymie the investigation, but his recruitment and direction of his subordinates to join in the conspiracy repeated efforts to stymie the investigation, but his recruitment and direction of his subordinates to join in the conspiracy."
Trump and his lawyers have seized on the findings of a different Justice Department special counsel Robert Hur, who said in a report last month that his team had uncovered evidence that Biden, as a private citizen, had willfully retained classified information but that that evidence fell short of proving guilt beyond a reasonable doubt — the standard required to secure a criminal conviction.
Cannon on Thursday evening scheduled a hearing for March 14 to hear arguments on several of the Trump team’s motions to dismiss, including Trump’s claim that he was entitled to possess the documents under the Presidential Records Act — an argument that prosecutors have vigorously disputed.
Prosecutors on Smith's team acknowledged that though there are “superficial similarities" in the cases, they stand apart in meaningful ways, including Trump's “extensive and repeated efforts to obstruct justice and thwart the return of documents bearing classification markings.” They cite the Hur report as noting that Biden, by contrast, alerted authorities to the presence of classified documents, willingly returned them, consented to searches of his homes and otherwise cooperated with the investigation.
Smith's team also says that though they gathered “powerful” evidence that Trump willfully held onto classified records from his presidency at his Mar-a-Lago estate, including showing them off to others while commenting about their sensitive status, the Hur report showed that such evidence against Biden was insufficient to establish criminal intent.
“The clear differential in the strength of the evidence on the crucial element of intent precludes Trump from showing that the two men are similarly situated,” wrote prosecutors for Smith, who was appointed in 2022 by Attorney General Merrick Garland to handle Trump-related investigations.
Other differences between the cases include the volume of documents found bearing classification markings — 88 in the Biden investigation, 337 in the Trump one — and their sensitivity. The records most at issue in the Biden probe are now nearly 15 years old, prosecutors said, while the files recovered from the Trump investigation are much more recent and concern information about U.S. nuclear programs and military and defense capabilities of the U.S. and foreign countries.
And though the Biden documents for which charges were most plausible were found in a garage, those risks are “dwarfed by the risks" of storing classified documents at an “active social club” with hundreds of members that hosted weddings, fundraisers and other events with tens of thousands of guests, prosecutors said, referring to Mar-a-Lago.
In other filings Thursday, Smith's team rejected additional Trump arguments seeking to dismiss the case, including the former president's claim that he is immune from prosecution for acts committed in office.
The Supreme Court has said it intends to hear arguments in April on the question of whether a former president is shielded from prosecution for official acts, an argument Trump has raised in a separate case brought by Smith charging him with scheming to overturn the results of the 2020 presidential election.
Prosecutors say there's no legal support for Trump's immunity claim, particularly in a case like this one where the charges involve conduct that occurred after he left the White House.
“Every criminal charge in the Superseding Indictment is based upon conduct in which Trump engaged after he left office. Even if a former President could claim some immunity from criminal prosecution for official acts — and he cannot — Trump could not benefit from any such immunity in this case,” prosecutors wrote.